' KHAWAJA NAVEED AHMED, J.---On the last date of hearing i. e. 28-1-2008 this Court had passed a detailed order and had directed the decree-holder to depute some responsible officer with authority to make statement to the effect that whether they are ready to accept Rs,31.493 million towards full and final settlement of their decree. It was directed that officer should personally appear along with written statement, signed by the competent, authority on 4-2-2008 before this Court.
2. In compliance of the order dated 28-1-2008 today Kaleem Ahmed Siddiqui, Manager, Model Colony Branch, Karachi, is present along with his Advocate Mr. Rasheed Ahmed. Learned counsel for the decree-holder has drawn attention of this Court towards the counter-affidavit, which has been filed on behalf of the decree-holder. According to counter-affidavit, sworn by one Qamar Jawaid son of Syed Abul Lais Rizvi, Manager of decree-holder, it is mentioned in paragraph 3 that valuation assessed by Messrs National Evaluation Company (Pvt.) Limited is on very low side as compared to previous valuation. It is further mentioned in paragraph 8 of the counter-affidavit that unless the application, filed by judgment-debtor is dismissed with compensatory costs the decree-holder/bank shall be seriously prejudiced.
3. Now today contrary to their counter-affidavit, learned counsel for the decree-holder and the officer, who is present in Court, state that the valuation of Rs,31.493 million may be accepted and if it is not accepted the value will further decrease because of the theft as well as deterioration of the machinery. From the record it is clear that five years earlier i.e, 1-7-2003, the government evaluator had evaluated the value at Rs,43.688 million. The government evaluator has re-assessed the value on 13-6-2007 as Rs,31.493 million. Learned counsel for the decree-holder says that approval under BPD Circular No,29 of State Bank of Pakistan has already been granted to the judgment-debtor No,
1. Forced sale value of Rs,31.493 million is acceptable to the decree-holder. Learned Advocate for the decree-holder as well as the Manager of Model Branch, Karachi, say that if Rs,31.493 million are given to the decreeholder/bank, the decree-holder will be satisfied.
4. Learned counsel for judgment-debtor No,1 has drawn my attention towards the order passed by this Court in Execution Application No, 1 of 2003 on 13-9-2006. The operative portion of the order.
Dated 13-9-2006, passed by my learned brother Mr. Justice Maqbool Baqar (as he then was) is reproduced herein- "Although Mr. M. Rasheed Khan does not dispute the calculation, he, however, opposes settlement under BCD-32 on the basis of the present forced sale value. Such opposition is totally misconstrued and untenable as the relevant forced sale value in terms of BPD Circular 32 is the current forced sale value. Since the judgment-debtors are ready and willing to pay the amount of the machinery allegedly lost/misappropriated as noted above, it would be wholly unjustified and unlawful to prevent them from availing the scheme under the circular. The judgment-debtors may, therefore, deposit towards the satisfaction of the present decree an amount 10% of the forced sale value of the assets of the judgment-debtor company being Rs,14719 million along with an amount of Rs,912,640,000 with the Nazir of this Court within two weeks time from today and thereafter continue to deposit the instalment as prescribed by the BCD Circular 29, which amounts the decree-holder bank shall withdraw from the nazarat."
5. Learned counsel for the Judgment-debtors has submitted that two companies namely Messrs Pak Green Fertilizers and Messrs Multan Edible Oil were under the same management of Judgment-debtors which, both entities, after availing finance facilities from the Decree-holder- Bank, could not repay the same and hence two different suits were filed by the Decreeholder-Bank against the said entities. The said suits were decreed and two separate Execution Application bearing Nos.1 of 2003 and the present Execution Application No,170 of 2001 were preferred by the Decree-holder-Bank. It is further submitted that in the meantime State Bank of Pakistan had introduced BPD Circular No,29, dated 15-10-2002, which gave an incentive scheme for the debtors of non-performing loans. The learned counsel for the Judgment-debtor has stated that the Judgment-debtors in both the above Executions Applications had applied in the said incentive schemes and his request was allowed by the State Bank of Pakistan. Consequently, by repeated orders of this honourable Court in Execution Application No,1 of 2003 the present Decree-holder was directed to obtain fresh Forced Sale Value ("FSV") of the assets, which was done and finally by orders dated 13-9-2006 and 2-10-2006 the Settlement Agreement in terms of BPD Circular No,29 was finally implemented by the Court, which is being complied with by the Judgment-Debtors.
6. Learned counsel for the Judgment-debtor has submitted that in the present Execution Application this Court by orders dated 8-4-2004, 26-4-2006, 14-9-2006 and 6-6-2007, the Decreeholder-Bank was directed by the Court to execute Settlement Agreement with the Judgment-Debtors in terms of BPD Circular No,29 after obtaining fresh FSV of the assets of the Judgment-debtor-Company. The present FSV of the assets has been assessed by the Valuator as appointed by this Court vide order dated 30-5-2007 and 27-8-2007 which comes to Rs,31.493 Million which the Judgment-debtor is ready to pay to the Decree-holder-Bank subject to the condition that they return their original title documents of the mortgaged/pledged properties to the Judgment-debtors.
7. In reply to the plea of the Decree-holder that the present FSV is lesser than the previous FSV, learned counsel for the Judgment-debtor has also drawn attention of this Court to order dated 30- 9-2002 in which the fact that the factory premises was in the occupation of Pakistan Army, as recorded by the Official Assignee, is also evident, which was one of the factors for reduction of the FSV. Later on the said factory was handed over to the learned Official Assignee. Learned counsel has also pointed out that in the year, 2003 when previous FSV was obtained, the machinery was in good working condition whereas by the year, 2007 when the last FSV was obtained the machinery condition has deteriorated which is not in a serviceable condition. Learned counsel has further submitted that the present Valuators were appointed by consent of both the parties as evident from the order dated 30-5-2007. These were some of the reasons for reduction of FSV, which would further increase in case the present offer is not accepted by the Decree-holder resulting in further loss to the Decree-holder-Bank. Learned counsel further submitted that since the year, 2002 when the BPD Circular No,29 was introduced the Judgment-Debtors are constantly requesting and pursuing the Decree-holder for settlement in terms of the said Circular, however, due to reasons best known to the Decree-holder-Bank, the Bank was delaying the matter. This is evident from the fact that in terms of BPD Circular No,29 no order was required to be obtained from the Court for execution of the Settlement Agreement, however, the record shows that for each and every occasion the Judgment-debtor had to apply to the Court. Resultantly, the orders referred above clearly indicate that time and again this Court has directed the Decree-holder to execute Settlement Agreement with the Judgment debtors, as per fresh FSV of the assets of the Judgment debtor-Company.
8. Learned counsel has further submitted that in the counter-affidavit to C.M.A. No,853 of L.007, the Decree-holder has not denied paragraphs 1 to 9 of the affidavit of the Judgment-debtor in support of application under section 151, C .P.C. (C.M.A. No,853 of 2007) which confirms the above facts. He further submitted that although the same stance was adopted by the Decree-holder in the other Execution Application No, I of 2003, however, this Court vide order dated 13-9-2006 clearly directed the Decree-holder to honour and implement the terms of BPD Circular No,29, which is the exact case in the present proceedings. He, therefore, prays that since the Judgment-debtors are ready and willing to pay the entire amount of the fresh FSV to the Decree-holder in terms of the fresh valuation, the Decree-holder may be directed to honour and implement the terms of BPD Circular No,29 in its letter and spirit and the original title documents of the mortgaged/pledged properties of Judgment-debtors be immediately handed over to the Judgment-debtors upon receipt of such payment.
9. The present case is also on the same footing as was Execution Application No,1 of 2003. In case I delay the matter or postpone it the value of the property will further decrease due to depreciation/ theft of machinery. In the circumstances, I order that the decree should be satis fied on the Forced Sale Value. The Judgment-debtor is directed to deposit the amount with the Decree-holder as prescribed under BPD Circular No,29 of State Bank of Pakistan. The Decree-holder Bank is directed to return original documents of the Judgment-debtor upon receipt of full and final payment of Forced Sale Value.
' Execution Application No,170 of 2001 is disposed of in the above terms.